Regulation n° 6/2002 of December 12, 2002 came into force 60 days after its publication in the Official Journal (OJCE L 3 of 5/01/2002), i.e. on March 6, 2002.
From April 1st, 2003, it is possible to obtain a registered Community design right provided for by Article 13.
It is possible to have an unregistered Community design right provided for by Article 12 as from March 6, 2002.
Who can be proprietor of a Community design ?
Any moral or natural person may be the proprietor of a Community design, without any condition on the nationality.
The Registered Community Design (RCD)
The requirements for the protection by the Registered Community Design right are that :
- it must be new at the filing date (Article 5 ) or at the priority right ; and
- the design must have an individual character (Article 6).
The disclosure by the creator himself is opposable if it has occurred more than one year before the filing (grace period provided for by Article 8).
However, a disclosure does not destroy the novelty nor the individual character when it concerns designs which "could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community".
The components parts of a complex product are protected only if both requirements (novelty and individual character) are fulfilled. Furthermore, they have to remain visible by the final observer (Article 4).
Detached parts: an isolated part is not protected if its shape is dictated by the whole product. The boundary between the protected detached parts and the parts of a complex product will have to be clarified by the doctrine and the jurisprudence.
According to the debates, it seems that the design right bearing on a detached part is not opposable to a third party for the repairing of the original product, but that it is opposable for the repairing of other products.
Scope of the protection
The Community design right allows to prevent the sale of an identical product or a product such that the overall impression it produces is similar (Articles 11 and 20).
Prosecution
As for the Community mark, the filing of a Community design involves the choice of two languages : the first one is selected among the 11 official languages of the European Community and the second one among the 5 official languages of the Office for the Harmonization in the Internal Market (OHIM), i.e. English, French, German, Italian and Spanish.
For the inter partes prosecutions (cancellation procedures), the plaintiff can use one of the two languages used by the applicant. The applicant may respond in the other chosen language without having to provide any translation contrary to the Community mark prosecution. It will therefore fall to the Office to translate the applicant's argumentation into the prosecution language (a maximum fee will probably be established for the cost of the translation taken over).
The OHIM does not undertake any examination on the merits; there is no opposition prosecution but a cancellation proceeding is possible, without any time limit after the publication.
The OHIM has in view the object of publishing the design registration 3 months after its filing in the absence of any procedure (notification relating to the formal examination).
The design is registered for a period of 5 years which may be renewed for one or more periods of five years each, up to a total term of 25 years (Articles 13 and 54).
Time scales involved in the registration process
The filing number is sent within 2-3 weeks from the filing.
The certificate of registration is sent about 2 months from the filing.
The Unregistered Community Design (UCD)
The Regulation provides for a protection of Community designs without any filing (Article 12) for the designs disclosed for the first time after March 6, 2002.
Such a protection is of 3 years from the first disclosure of the design.
The disclosure must be such that the design is known by the professionals of the EC. Therefore, it will be requested to establish the proof of such a disclosure as for its date and its scope.
Such a protection is important for the countries which do not allow to cumulate the protection of a creation by the Copyright and by the design right.
The protection of any unregistered design requires the same conditions of novelty and individual character as the registered design, which are evaluated at the date of disclosure. However, contrary to the registered design, the validity of the unregistered design is not supposed.
The protection conferred to the unregistered design is rather restricted because it only allows to prevent the copy (Article 20). The plaintiff must bring the proof of the copy (voluntary and guilty copy).
|
